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Intellectual Property Law

: IPKat

Search Yahoo! for Elly? Not on your Nellie

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

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This is the film that has got
Yahoo! into so much trouble

All sorts of exciting things have been going on in Rome, if the IPKat's Italian eyes do not deceive him. Of particular excitement is an historical decision of the Tribunale di Roma (that's the First Instance Court in Rome, unless you end up at some other forum) which was handed down on 22 March 2011. The Ninth Division of the Tribunale, it seems, was the first Italian court to hold a search engine (in this case, Yahoo!) liable for not controlling online piracy. According to the Kat's friend Eleonora Rosati (Bird & Bird),

"The Court found Yahoo! guilty of aiding and abetting the infringement of copyright in the film 'About Elly' because, among the various results obtained by ?yahooing? ?About Elly?, links were displayed which led to websites that unlawfully offered the reproduction, as whole or in part, of the film (through streaming or downloading options).

The Court (Mrs Justice Gabriella Muscolo) referred to Articles 14-17 of the E-Commerce Directive (as implemented in Italy by Legislative Decree 9 April 2003, No. 70) and Article 156 of the Italian Copyright Act (Law 22 April 1941, No. 633, as modified in order to implement the IP Enforcement Directive) and cited - inter alia - the decision of the ECJ in Google Adwords (Case C-236/08).

The judge thus held Yahoo! liable for contributory infringement and ordered the search engine to pay the costs of the proceedings".

Another of the Kat's Italian friends, Gaetano Dimita, tells him that the reasoning of the court is not yet available, but that in any event Yahoo! has already declared that it will appeal. Gaetano also did a bit of empirical research:

"Interestingly, simply typing 'Abou' into Yahoo!, the engine suggested 'About Elly' -- providing the user with 10,300,000 links to websites making the film available. The extent to which this constituted 'knowledge' cannot be assessed without seeing the full reasoning of the judgment, but it seems that the Italian courts are increasingly prepared to find ISPs liable (ie vividawn v Google last year)".

He adds that Open Gate Italia has declared that Google will be the next target and suggests that readers may wish to check out the reports of this decision in the Italian media:

? ANSA - Sentenza contro Yahoo, stretta su film
? Corriere della Sera - Pirateria di film in rete. Condannato Yahoo!
? Repubblica - here? Il Sole 24 Ore - Sanzionato il link al sito pirata
? La Stampa - Cinema, sentenza senza precedenti contro Yahoo! Italia
? L'Unità - Condannato Yahoo!: violazione diritti sfruttamento economico film
? Il Velino - Web, per ?About Elly? Yahoo! può indirizzare solo al sito ufficiale

The IPKat thanks his friends for this information. Merpel says, I tried keying in "Abou" into Yahoo! and ended up with Abou Diaby ...

"Not on your Nellie" here, here and here

Full post as published by IPKat on March 28, 2011 (boomark / email).